1. DELIVERY DRIVERS WORKING FOR DIGITAL PLATFORMS (RIDERS) ARE NO LONGER CONSIDERED TO BE SELF-EMPLOYED AND THE STATUTE OF WORKERS NOW APPLIES TO THEM
On 12 May 2021, Royal Decree-Law 9/2021 of 11 May was published in the Boletín Oficial del Estado, clarifying that the Statute of Workers applies to delivery drivers working for digital platforms. In addition, for the first time, it sets out the right of workers’ representatives to be informed by the company about the use of algorithms or artificial intelligence systems that may affect working conditions, hiring, or maintenance of employment.
2. IT IS NOT DISCRIMINATORY FOR FOGASA TO PAY LESS COMPENSATION AND/OR lower WAGES TO PART-TIME employees THAN TO FULL-TIME employees
The adjustment of the payment limit insured by FOGASA (the Fondo de Garantía Salarial or “Salary Guarantee Fund”) applicable to part-time employees, which relates to the percentage of the working day worked by part-time employees compared to the working day worked by full-time employees carrying out the same activity, is a correct application of the principle of pro rata temporis, within the meaning of clause 4, point 2, of Council Directive 97/81EC of 15 December 1997 concerning the Framework Agreement on part-time work.
3. an EMPLOYER COMMITS THE CRIMINAL OFFENCE OF DISCOVERY AND DISCLOSURE OF SECRETS IF IT REPEATEDLY ACCESSES its EMPLOYEE’S PRIVATE E-MAIL ACCOUNT
The Supreme Court has confirmed an employer’s sentence of one year’s imprisonment for committing the offence of discovery and disclosure of secrets, with the mitigating circumstance of undue delay. The employer, in searching for evidence of disloyalty on which to base a claim for disciplinary dismissal, repeatedly accessed the employee’s private e-mail account.
4. a LACK OF FRAUDULENT INTENT IN A NEW EMPLOYMENT RELATIONSHIP WITH THE SAME COMPANY OR WITH ANOTHER RELATED COMPANY DOES NOT mean that THE EMPLOYEE’S SEVERANCE OR TERMINATION PAY is automatically tax exempt
For the rebuttable presumption in article 1 of the Personal Income Tax Regulation to apply, it is sufficient if, within the three years following the dismissal of the employee or termination of their contract, the employee returns to provide services in the same company or in another related company; there is no need for there to be a fraudulent purpose behind the new provision of services. Consequently, the absence of a fraudulent intent behind a new relationship with the same company or with another related company does not automatically lead to the application of the exemption in article 7(e) of the Personal Income Tax Law.
5. THE SUPREME COURT MODIFIES ITS position AND ESTABLISHES THAT, IN GENERAL, A CONTRACT DURATION OF MORE THAN THREE YEARS is CONSIDERED UNJUSTIFIABLY LONG, WHICH MEANS THAT INTERIM employees BECOMES NON-PERMANENT EMPLOYEEs
As a result of the recent ruling of the CJEU of 3 June 2021, the Supreme Court has departed from its established case law and decided that, in general, a contract duration of more than three years is unjustifiably long, resulting in the interim employee in question becoming a non-permanent indefinite-term employee (indefinido no fijo).
6. THE DISMISSAL OF A male EMPLOYEE ON THE DAY HIS WIFE GIVES BIRTH IS DISCRIMINATORY AND THEREFORE NULL
The company did not evidence poor performance by the employee that would justify a disciplinary dismissal and since the birth and the dismissal were so close in time, there were plausible indicators that the dismissal took place due to the fact that the employee was going to be a father. This was thus a case of “reflexive discrimination”(discriminación refleja) and the dismissal was declared null.
7. a VARIATION OF MEASURES relating to WORKING HOURS AND WORKING TIME AS A RESULT OF THE EXCEPTIONAL SITUATION created by COVID-19 IS NOT A SUBSTANTIAL MODIFICATION OF WORKING CONDITIONS
The Supreme Court ruled that the company in question had limited itself to applying the exceptional regulations approved due to COVID-19 and had incorporated them alongside the existing occupational-hazards regulations in order to keep its employees safe during this exceptional and temporary situation, all within the appropriate framework of the management and organisational powers granted to the company.
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